Impact of Government Shutdown on NLRB, Part II: Some Proceedings Delayed Indefinitely, Extensions to Serve and File Documents Granted, New Charges Must Be Filed Within Six Months

by:  Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry

On Monday October 1, 2013, the Board published a Notice in the Federal Register  to the NLRB’s website that supplements the effects of the Contingency Plan that we examined at outset of the government shutdown and NLRB furlough. Significantly, the Notice answers some of the important practical questions confronting employers, unions and employees with business before the Board.

With respect to time limits for filings with the agency, according to the Notice, the Board has unilaterally granted an extension of the time to file or serve most documents (with some exceptions) equal to the number of days (including partial days) that the shutdown lasts.  With regards to representation elections and hearings scheduled for October 1 – 11, they are postponed indefinitely.

Significantly, the Notice makes clear that the extension of time does not apply to the 6-month statute of limitations applicable to filing charges under Section 10(b) of the National Labor Relations Act.  In the Notice, the Board recommends that anyone who wishes to file a charge while the NLRB is shut down do so by faxing a copy of the charge to the appropriate Regional Office. Anyone doing this would be well advised to keep records and evidence such as confirmations of transmittal, so that they can, if necessary, show when their charges were sent to and received by the Board’s fax numbers.

As frustration with the furlough continues to mount, it seems the agency has taken action that, whether intentionally or inadvertently, is likely to aggravate the impact of the shutdown on the labor and management communities by prohibiting public access to existing resources such as the research and other informational functions typically available on the Board’s website. While we do not know whether this was required by the Contingency Plan or some other dictate, it is worth noting that at least at this time, the websites of other federal agencies in the labor and employment arena, such as those of the Equal Employment Opportunity Commission, the Federal Mediation and Conciliation Service and the Department of Labor’s, remain functional.